NAGPRA (Native American Graves Protection and Repatriation Act) as applied to Hawaii -- Mokapu, Honokahua, Bishop Museum Kaai; Providence Museum Spear Rest; Forbes Cave Artifacts; the Hui Malama organization; Emerson Collection at Kanupa Cave; Bones uncovered during construction at Ward Center; Construction of a beachfront house on Kauai built above cement-encased ancient burials after activists said the burials should not be moved; Planning for Honolulu rail project; Protests against Kawaiahao Church for unearthing and moving cemetery burials during construction of new meeting hall.

PERSONAL NOTE FROM KEN CONKLIN, AUTHOR OF THIS WEBSITE, TO HELP READERS MAKE SENSE OF THE ISSUES

The title of this page includes a bewildering collection of topics and controversies. I have struggled with all of them on and off for many years. The issues are very complex, involving philosophy, spirituality, history, law, morality, politics, and strong emotions. In March of 2003 it came to my attention that a federal investigation was underway concerning the Forbes Cave controversy, and that the government NAGPRA Review Committee would be making that controversy the focus of its semiannual meeting in May. Accordingly, I spent several weeks reviewing what I already knew, doing additional research, thinking, meditating, writing, and re-writing. A coherent picture finally began taking shape. This webpage, and its sub-pages, is an attempt to put all the pieces together in a way that will make sense to the reader. But there may be two very different kinds of readers, and therefore I have provided alternative arrangements of the subject matter to meet their needs.

This front page contains three parts: (1) An overview of the basic issues from the perspective of my own conclusions, using the Forbes Cave controversy as a starting point (because that's what was getting all the attention in 2003); (2) A suggested order of reading the subpages for people primarily interested in Forbes Cave but also wanting to see how all the other topics fit together; (3) A suggested order of reading the subpages for people who might not know very much about any of these topics and/or who want to learn things in a logical, top-down sequence; (4) An outstanding summary of NAGPRA, the Forbes Cave controversy, and other controversies, as published in the professional journal "Museum" [American Association of Museums], March/April issue of 2008.

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(1) OVERVIEW OF THE ISSUES, STARTING FROM THE FORBES CAVE CONTROVERSY OF 2000 (readers who are not familiar with some things should nevertheless continue reading, because everything will later be clarified and you may then re-read this overview with greater understanding)

The Forbes Cave artifacts controversy is heating up again. The federal NAGPRA Review Committee, under the authority of the National Parks Service and Department of Interior, held its semiannual meeting in St. Paul, Minnesota May 9-11, 2003. The Forbes Cave controversy was the focal point of the meeting (NAGPRA is the acronym for the Native American Graves Protection and Repatriation Act of 1990, and subsequent revisions). For those readers wanting to get an update on current events regarding Forbes cave there is a webpage where the agenda of the meeting is available, along with a fax from Hui Malama to the Secretary of Interior and the Senate Committee on Indian Affairs trying to exert political pressure to remove Forbes Cave from the agenda. Newspaper articles about the meeting and its aftermath are provided. This webpage includes materials directly related to the May 2003 meeting of the NAGPRA Review Committee, and the consequences of that meeting, up to December 29, 2004. See:
http://www.angelfire.com/hi2/hawaiiansovereignty/nagpraforbesafterreview.html

The Forbes Cave controversy is very complex and lengthy. Here is a review of it, together with all the other issues mentioned in the title of this webpage.

In year 2000 Bishop Museum worked closely with one claimant, Hui Malama, to turn over the artifacts to them quickly and secretly, before other claimants could present their cases. It is questionable whether Hui Malama should have received all, or indeed any, of the artifacts. There are also rumors that some of the artifacts may have been sold rather than re-buried in a cave, or may have been reburied but then stolen due to (intentionally?) poor security at the cave. The artifacts would probably fetch many millions of dollars if sold in the often shady antiquities markets. Claimants who feel the law was broken have complained to the NAGPRA Review Committee, which has agreed to hear testimony from all sides.

It is important for the public to give careful thought to the philosophical, moral, and political issues involved. We must weigh the rights of ancestors, and their bones and spirits, to be left in peace; the property rights of lineal descendants to control disposition of bones and artifacts of their own family members; and the rights of future generations of ethnic Hawaiians and of the general public to learn about Hawaiian culture and to be inspired by studying and seeing ancient remains and cultural artifacts.

Some would compare the recent looting of the Iraq National Museum in Baghdad (April, 2003) with the removal from Bishop Museum of the Forbes Cave artifacts (2000) and the ka'ai (1994). In both Baghdad and Honolulu priceless ancient artifacts have been taken out of museums by small groups of people for their own reasons, in violation of due process, thereby destroying important parts of cultural heritage and depriving current and future generations of knowledge and inspiration. The difference between Baghdad and Honolulu is the difference between cultural manslaughter and cultural murder -- the theft of the ka’ai from Bishop Museum in 1994 and the removal of the Forbes Cave artifacts from Bishop Museum in 2000 were both carefully premeditated. The 1994 theft must have had the assistance of museum employees, while the artifact removal in 2000 was accomplished with the assistance of many museum personnel, from top to bottom of the staff hierarchy, who cooperated with a group of claimants favored because of their political connections and their radical views on re-burial. Scientists and cultural preservationists might consider groups like Hui Malama to be very much like looters, because they are stripping valuable artifacts out of museums and leaving bare shelves behind. But groups like Hui Malama, of course, would argue that the artifacts were originally looted from the caves where they rightfully belonged, by archeologists barely distinguishable from grave-robbers, and that Bishop Museum was in possession of stolen property which has now been "liberated" and repatriated.

The looting in Baghdad was done in a lawless situation, in the exuberance of the moment following the overthrow of the murderous tyrant Saddam Hussein. It was similar to the spontaneous looting in Paris and St. Petersburg during the French and Russian revolutions, and to a lesser extent the looting of 'Iolani Palace during the Hawaiian revolution of 1893. Indeed, every year we see small versions of recreational looting and exuberant lawlessness in the cities whose sports teams win national titles in hockey, football, and baseball. If cultural heritage was killed in Baghdad, it was manslaughter without malice of forethought. But in the case of Bishop Museum (both the 1994 ka'ai theft and the 2000 Forbes Cave artifacts repatriation), what happened was premeditated, first degree cultural/historical murder.

The looted artifacts in Baghdad go back 7000 years, and are important parts of the heritage of the entire world. By contrast the Honolulu artifacts go back only a few hundred years in a local population that goes back less than 2000 years, and might seem significant only to a localized culture. But Bishop Museum is as important to preservation of Hawaiian history and culture as the Iraq National Museum is to preservation of the history of Mesopotamia and Babylon, and preservation of the history of the world's invention of writing, accounting, codified law, and the wheel. The cultural heritage of Hawai'i is located almost entirely in Hawai'i, does not go back nearly as far as Iraq, and has relatively few examples confined to a very few publicly available cultural sites and museums. Thus, the security of cultural artifacts at Bishop Museum is extremely important to the preservation of Hawaiian heritage.

In 1994 the ka'ai were stolen with no attempt to make it look like due process had been followed. The thieves apparently conspired with one or more Bishop Museum staffers, since the "break-in" happened after closing hours, the security alarms remained silent, and there was no breaking of exterior or interior doors, locks, or storage cabinets.

But in 2000 the cultural murder (of the Forbes Cave artifacts) was accomplished by using some due-process elements of the NAGPRA law as accomplices. NAGPRA provided an appearance of due process for competing claimants, lulling them into a false sense of security, up until the moment when the museum suddenly took a drastic action to short-circuit the process. NAGPRA provided a myriad of regulations which allowed the museum to stall competing claimants by insisting they dot the i's and cross the t's. NAGPRA regulations allowed the museum to make a "loan" of the artifacts to its favored claimant, Hui Malama, probably knowing that the "loaned" artifacts would never be returned (since the clearly expressed primary purpose of the Hui Malama organization has always been to secretly re-bury bones and artifacts and even to destroy photographs of them). NAGPRA regulations allowed both Bishop Museum and Hui Malama to keep secrecy regarding exactly what had happened, and to maintain that secrecy even years later. Such secrecy adds to an overall suspicion that Hui Malama and the museum could perhaps have conspired to “liberate” the Forbes Cave artifacts for re-burial by making a “loan” that both sides knew would never be returned. It is interesting that Hawai'i Senator Dan Inouye, as chairman of the Senate Indian Affairs Committee, played a major role in creating NAGPRA. Inouye's staff members, and federal funding he shepherded through Congress, have played important roles in Bishop Museum and Hui Malama. Unsuccessful claimants for Forbes Cave artifacts had no such financial or personnel relationships with the Senator's staff.

The organization known as Hui Malama I Na Kupuna O Hawai'i Nei, headed by Edward Halealoha Ayau, has become very powerful in controlling the "repatriation" and re-interment of ancient Hawaiian bones and artifacts. It played a role in the writing and enactment of the NAGPRA law, partly because its leadership had important political connections with the office of U.S. Senator Dan Inouye, who is Chairman (or ranking member) of the U.S. Senate Select Committee on Indian Affairs whenever the Democrats (or Republicans) are in control of the Senate. Those political relationships have continued for at least fifteen years, and are still in play today. Hui Malama also gets hundreds of thousands of dollars in grants, partly because of those same political connections. But its leadership, operations, and budget are shrouded in mystery and secrecy, despite laws that require such matters to be open to regulatory and public scrutiny. It is unclear what Hui Malama does with the enormous amounts of money it gets, and also unclear what happens with all the bones and artifacts it "repatriates." Some of those artifacts would be extremely valuable if sold in the (often shady) antiquities markets.

Hui Malama also sees itself as asserting political sovereignty on behalf of all ethnic Hawaiians. It clearly places the interests of the "Lahui" (racially-defined "nation") far above the interests of individuals or families who may be lineal descendants. The organization's website states, "Hui Malama I Na Kupuna O Hawai`i Nei believes that in order for Native Hawaiians to firmly and with focused movement (`onipa`a), realize their future, we must amongst other responsibilities, take appropriate care of the past by reestablishing and strengthening the ancestral foundation. It is through this important foundation, that our house (our future) will be built. Lãhui means all of us, especially the original citizens of our great nation." Elsewhere, discussing the Mokapu bones, the Hui Malama website says, "How can the Hawaiian nation heal itself from the wounds of Western contact when such actions have included inflictions that served to undermine the very foundation of it's families?" Thus, Hui Malama is (ab)using religious beliefs held by a few radicals to demand political power that would affect all ethnic Hawaiians and, indeed, all the people of Hawai'i. This attempt to theocratize and balkanize Hawai'i in some ways resembles what the Ayatollah Komeini did to Iran and what the Taliban did to Afhganistan.

It should be noted that Hui Malama has met with strong opposition from some recognized ethnic Hawaiian cultural leaders. For example, Rubellite Kawena Johnson was a claimant opposing Hui Malama for control of the Mokapu bones; Herb Kawainui Kane was a claimant competing against Hui Malama for control of the Forbes Cave artifacts; and both Ms. Johnson and Mr. Kane publicly opposed Hui Malama's assertion that the Providence Museum Spear Rest was a manifestation of the living spirit of a warrior. In an article in the Honolulu Advertiser of March 29, 2000 Herb Kawainui Kane wrote about Hui Malama’s plea to the NAGPRA committee demanding repatriation of the Providence Museum spear-rest: “In the absence of evidence, an emotional appeal was made, calculated to arouse sympathy from the American Indian majority on the review panel, and included highly inventive metaphysical statements. This is the kind of hogwash by which NAGPRA, a noble effort, has been corrupted. Those responsible will incur the rage of future generations of Hawaiians who have been denied access to the treasures of their past.”

NAGPRA was written in a way to allow acknowledged tribal council leaders to speak on behalf of small, homogeneous, federally recognized Indian tribes. But there are 400,000 ethnic Hawaiians of widely disparate viewpoints, who are fully integrated throughout Hawai’i and all the other states, in communities where most residents have no Hawaiian blood, and where the group is not federally recognized and has no acknowledged leadership. Thus it is grossly inappropriate to allow one small group of cultural and political radicals to speak on behalf of the entire ethnic group. Also, NAGPRA is heavily weighted in favor of tribal groups against the interests of scientists, museums, and the general non-Indian population. But in Hawai'i, the Hawaiian culture is the core of what makes Hawai'i distinctive for all Hawai'i's people, and many who have no Hawaiian blood participate actively in Hawaiian culture; thus, the general population should have a strong voice in helping to decide what happens to Hawaiian cultural artifacts. The tribal council of a small, homogeneous Indian tribe living separate and apart from surrounding non-Indian populations might reasonably assert intellectual and cultural property rights over bones and artifacts that clearly originated from that tribe; but ethnic Hawaiians are too numerous, too widely dispersed and assimilated and intermarried, and too lacking in tribal governance to reasonably possess intellectual and cultural property rights.

In addition to the Bishop Museum controversies involving the ka'ai and the Forbes Cave artifacts, there are other well-known NAGPRA-related controversies in Hawai'i. The unearthing of 1600 sets of remains at Mokapu (Kane'ohe, O'ahu) occurred mostly before 1940, and almost entirely before NAGPRA was enacted in 1990; but NAGPRA has been used to demand repatriation of those bones from Bishop Museum for reburial at Mokapu. About 900 sets of bones were unearthed at Honokahua (Kapalua, Maui) during preliminary excavations for the ocean-front Ritz Carlton Hotel. The entire Honokahua controversy began and was resolved from 1986 to 1989 before NAGPRA was enacted (Hui Malama got established in response to this controversy). The 1998 repatriation of a spear-rest from Providence Museum (Rhode Island) was probably the most straightforward application of the NAGPRA law among all these controversies. Nevertheless, the spear-rest was returned to Hawai'i only after OHA "donated" $125,000 to the Providence Museum to settle a lawsuit by the museum against OHA and NAGPRA which threatened to invalidate the NAGPRA law unless a settlement was reached. More recently, the Kennewick Man controversy (Washington state) has directed major attention to NAGPRA throughout the U.S. and the world.

All the topics mentioned above are explored here. This webpage pulls together a large amount of information about several major controversies concerning bones and artifacts of ethnic Hawaiians, in order to assess the appropriateness of the NAGPRA law as it has been applied in Hawai'i, and in order to judge the way an organization called Hui Malama has been operating.

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(2) SUGGESTED ORDER OF READINGS FOR HAWAI'I RESIDENTS OR OTHERS GENERALLY FAMILIAR WITH THE ISSUES, WHO WANT TO START WITH THE FORBES CAVE INVESTIGATION BY THE NAGPRA REVIEW COMMITTEE IN MAY, 2003

Here are three items to read first: (1) Official letter of complaint from a certified claimant showing that Bishop Museum hastily, improperly, and secretly handed over extremely valuable artifacts to Hui Malama in violation of the rights of other claimants and in violation of NAGPRA mandated procedures; (2) Additional evidence of museum’s bad faith, including citations of NAGPRA rules that were violated; (3) Announcement that Forbes Cave Is the focus of a national meeting of the NAGPRA Review Committee in St. Paul, Minnesota May 9-11, 2003. These three items can be found at:
http://www.angelfire.com/hi2/hawaiiansovereignty/nagpra3forbesdocs.html

Bishop Museum has been building a huge online database to provide internet access to many items in its vast collection. To see a list of various databases (biological survey, ethnobotany, archeological projects, manuscripts, zooarcheology, etc) click here:
http://www.bishopmuseum.org/research/dbs/databases.html
One of the Bishop Museum's on-line databases is ethnology. It appears that none of the controversial Forbes Cave artifacts, nor the ka'ai, are included in the database (probably because Bishop Museum no longer has them!). It also appears that the items in the database are unlikely to be claimed by Hui Malama or other groups, since the items appear not to be human remains or associated funerary artifacts. To see the Bishop Museum ethnology database, including 70,000 objects grouped by function (mats, poi pounders, weapons) and materials (wood, fiber, bamboo), click here:
http://www2.bishopmuseum.org/ethnologydb/index.asp

At the bottom of this webpage, after the alternative order for reading the subpages, are pictures of three of the controversial artifacts. Providing these pictures is itself a controversial action. Some website readers might prefer not to look below the final long paragraph near the bottom of this page -- if you look, you will see things you might believe it is morally wrong to display (photographs of artifacts which Hui Malama says contain the living spirits of ancestors). And so you are hereby warned, in a manner similar to the parental advisory placed at the beginning of some television programs, that discretion should be exercised before looking below that long paragraph at the bottom of this page. When you see a WARNING followed by a blank space below that final paragraph, stop scrolling down, and after reading that final paragraph, use the "back" button on your browser to avoid seeing something that you might consider improper. If you feel you cannot resist looking, because you are curious, then consider how scientists feel when they want to explore bones and artifacts denied to them by groups invoking NAGPRA rights. If you look at the pictures and are glad you saw them, because seeing them helped you understand and appreciate Hawaiian culture; or if you get “chicken skin” because you sense the mana or spiritual power of the objects, then imagine how future generations will be deprived of those understandings and feelings if Hui Malama gets its way. And if you look at the pictures and feel disgusted at the way the display of the pictures is a desecration of the spirits of the ancestors, and you want to smash your computer monitor, then you will understand how Hui Malama members feel when they see bones and funerary artifacts displayed in museums.

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(3) SUGGESTED ORDER OF TOPICS FOR READERS WHO WOULD PREFER TO GO FROM GENERAL TO SPECIFIC, BEGINNING WITH THE NAGPRA LAW AND KENNEWICK MAN CONTROVERSY; AND THEN STUDY 5 HAWAI'I NAGPRA-RELATED CONTROVERSIES IN CHRONOLOGICAL ORDER (MOKAPU AND HONOKAHUA HUMAN REMAINS CONTROVERSIES; THE KA'AI, SPEAR-REST, AND FORBES CAVE ARTIFACTS)

This webpage focuses on published newspaper, magazine, and website articles concerning five high-profile occasions when NAGPRA was applied in Hawai'i, or could have been applied. There are also documents filed in a federal investigation by the NAGPRA Review Committee concerning the Forbes Cave artifacts. In chronological order of public controversy the five occasions are: the Mokapu bones (1600 sets of ancient remains unearthed at Mokapu on O'ahu); the Honokahua bones (900 sets of ancient remains unearthed at Honokahua, Kapalua, Maui); the two Bishop Museum ka'ai allegedly 500 years old containing the bones of major historical high chiefs Liloa and Lonoikamakahiki; the "repatriation" of a spear rest held by a museum in Providence, Rhode Island; the artifacts held by Bishop Museum that had been found in 1906 by archeologists working in Forbes Cave. In each case there were severe problems caused by impatience and possibly by greed. The intent of NAGPRA was violated by failure to adhere to its rules regarding proof that bones or artifacts are covered by the law, proof that individuals and groups claiming a right to possession are actually entitled to possession, procedures for recognizing which claimants deserve recognition, and procedures for adjudicating disputes among competing claimants. The ka'ai controversy was an actual theft of precious ancient artifacts from Bishop Museum for the alleged purpose of re-burying them in their original burial place; thus, the theft indicates a total lack of confidence in the NAGPRA process. Both the ka'ai and the Forbes Cave controversies seem to have the appearance of Bishop Museum insiders collaborating closely with a favored outside group to violate the rights of other claimants and of the general public, to "liberate" precious artifacts stored in the museum and "return" them to their "rightful" tombs.

The case of the Forbes Cave artifacts is especially troubling because of the high commercial value if the artifacts were sold on the open market. There are serious concerns that the artifacts may actually have been sold instead of being "repatriated" to the cave where they were originally found. Those concerns arise because of mismanagement of the process for claiming the Forbes Cave artifacts, the close relationships among museum officials and politicians and one of the claimant groups, and the secrecy surrounding disposition of the artifacts. The Forbes Cave controversy has been buried by Hawai'i media for more than two years, even though there is no way for investigators or the public to verify whether the artifacts themselves have been buried. The controversy is exhumed as the main focus of the national NAGPRA review committee semiannual meeting, under the auspices of the Department of Interior, May 9-11, 2003 in St. Paul, Minnesota.

In Hawai'i there have been many occasions when ancient Hawaiian bones or artifacts have been unearthed, either by the intentional acts of archeologists or the unintentional acts of construction workers. This webpage describes five controversies. Here they are, in the chronological order in which they became massively controversial. By reading about these controversies in the order presented below, it will be possible to trace the growth of the Hui Malama organization and the increasing sophistication of their operations.

Probably the largest number of skeletons unearthed in a single location were found in the shoreline sand dunes of the Mokapu peninsula on the island of O'ahu, where the U.S. Marine Corps was doing construction work on a military base. Over a period of time about 1600 skeletons were removed and sent to Bishop Museum. The initial unearthings occurred in 1989, before NAGPRA was enacted. But NAGPRA does not seem to have helped, because there have been many unsuccessful attempts at a resolution of the issue and the bones have still not been reburied. Another major incident occurred at Honokahua, in Kapalua, Maui, where a corporation was excavating near the shoreline to build a large hotel. The hotel was redesigned to be set back farther from the shoreline. There is now a burial ground on the ocean side of the Ritz Carlton Hotel, set off from the rest of the hotel property by bushes and informational signs asking tourists to show respect. The Honokahua controversy appears to have been brought to a final conclusion reasonably satisfactory to both the developers and the ethnic Hawaiian activists, although the Mokapu controversy remains unresolved. For further information about Mokapu and Honokahua, see
http://www.angelfire.com/hi2/hawaiiansovereignty/nagpramokapuhonokahua.html

The organization known as Hui Malama I Na Kupuna O Hawai'i Nei, headed by Edward Halealoha Ayau, has become very powerful in controlling the "repatriation" and re-interment of ancient Hawaiian bones and artifacts. Hui Malama was created in response to the Honokahua controversy described above, and has played a central role in the on-going Mokapu controversy described above. It played a role in the writing and enactment of the NAGPRA law, partly because its leadership had important political connections with the office of U.S. Senator Dan Inouye, who is Chairman (or ranking member) of the U.S. Senate Select Committee on Indian Affairs whenever the Democrats (or Republicans) are in control of the Senate. Those political relationships have continued for at least fifteen years, and are still in play today. Hui Malama also gets hundreds of thousands of dollars in grants, partly because of those same political connections. But its leadership, operations, and budget are shrouded in mystery and secrecy, despite laws that require such matters to be open to regulatory and public scrutiny. It is unclear what Hui Malama does with the enormous amounts of money it gets, and also unclear what happens with all the bones and artifacts it "repatriates." Some of those artifacts would be extremely valuable if sold in the (often shady) antiquities markets. For a description of the Hui Malama organization's purposes, background, political relationships and financial activities, see:
http://www.angelfire.com/hi2/hawaiiansovereignty/nagprahuimalama.html

In February, 1994 two sennit (woven coconut-fiber) caskets were stolen from Bishop Museum in Honolulu. These two ka'ai are more than 400 years old, and contain the bones of two very important kings from Hawai'i Island (the "Big Island"): Liloa, and Lonoikamakahiki. The theft was allegedly done by ethnic Hawaiians who allegedly then returned the bones and their caskets to the cave where they had originally been buried, in Waipi'o Valley. The rumors were that some employees of the museum may have conspired with the thieves, to open locked doors to the building, to circumvent security alarms, to lead the thieves to the storage location, and to open locked cabinets. For details about the ka'ai themselves, the burial procedures associated with them, and the controversy surrounding their theft from Bishop Museum (including a B-movie playing in year 2003!) see:
http://www.angelfire.com/hi2/hawaiiansovereignty/nagprakaai.html

A single artifact became a focus of controversy in 1996. The artifact is a 15-inch tall wood carving of a man with upraised arms and inlaid pearl-shell eyes, and is probably more than 200 years old. It was probably used as a spear-rest. A museum in Providence Rhode Island (and its predecessor institution) apparently owned the artifact since 1810, and was trying to sell it, hoping to raise $200,000 to help finance improvements to the museum. Hui Malama claimed the artifact had never properly belonged to the museum, and that the artifact was a religious object invested with the spirit of a warrior and necessary to current religious practices of ethnic Hawaiians. The NAGPRA law was invoked by Hui Malama to prevent the sale, and to force the repatriation of the artifact to Hawai’i. The City of Providence, representing the museum, filed a lawsuit against NAGPRA and Hui Malama and others, claiming that the artifact was merely a utilitarian object which the museum properly owned, and that the forced repatriation would constitute an unconstitutional taking of private property without fair compensation. In the end, an out-of-court settlement was reached in which the Office of Hawaiian Affairs paid $125,000 to the Providence museum and took possession of the artifact and brought it back to Hawai’i. For a picture of the artifact, newspaper articles about the controversy, and a detailed explanation by Hui Malama of the religious nature of the artifact and the lawsuit, see:
http://www.angelfire.com/hi2/hawaiiansovereignty/nagpraspearrest.html

The Forbes Cave controversy concerns bones found in a cave in 1906, and cultural artifacts found in the same cave. The bones and artifacts were taken to Bishop Museum where they were studied and stored. But as a result of NAGPRA, the bones were "liberated" and re-buried. Then the artifacts became a focus of controversy because competing groups claimed them for conflicting purposes, and Hui Malama ended up taking control of the artifacts through improper methods, possibly with the connivance of Bishop Museum. Read published articles about the Forbes Cave controversy in chronological order to see how the controversy unfolded:
http://www.angelfire.com/hi2/hawaiiansovereignty/nagpraforbes.html
and then read three documents that make a strong case that there was a close collaboration between Bishop Museum and Hui malama where the NAGPRA law was an accomplice to what some might call the “theft” of the Forbes Cave artifacts. Read about the national NAGPRA Review Committee meeting focusing on the Forbes Cave controversy as its primary case study in how the law can be mis-used.
http://www.angelfire.com/hi2/hawaiiansovereignty/nagpra3forbesdocs.html

Bishop Museum has been building a huge online database to provide internet access to many items in its vast collection. To see a list of various databases (biological survey, ethnobotany, archeological projects, manuscripts, zooarcheology, etc) click here:
http://www.bishopmuseum.org/research/dbs/databases.html
One of the Bishop Museum's on-line databases is ethnology. It appears that none of the controversial Forbes Cave artifacts, nor the ka'ai, are included in the database (probably because Bishop Museum no longer has them!). It also appears that the items in the database are unlikely to be claimed by Hui Malama or other groups, since the items appear not to be human remains or associated funerary artifacts. To see the Bishop Museum ethnology database, including 70,000 objects grouped by function (mats, poi pounders, weapons) and materials (wood, fiber, bamboo), click here:
http://www2.bishopmuseum.org/ethnologydb/index.asp

After this paragraph and one more long paragraph are pictures of three of the controversial artifacts. Providing these pictures is itself a controversial action. Some website readers might prefer not to look below the final long paragraph near the bottom of this page -- if you look, you will see things you might believe it is morally wrong to display (photographs of artifacts which Hui Malama says contain the living spirits of ancestors). And so you are hereby warned, in a manner similar to the parental advisory placed at the beginning of some television programs, that discretion should be exercised before looking below that long paragraph at the bottom of this page. When you see a WARNING followed by a blank space below that final paragraph, stop scrolling down, and after reading that final paragraph, use the "back" button on your browser to avoid seeing something that you might consider improper. If you feel you cannot resist looking, because you are curious, then consider how scientists feel when they want to explore bones and artifacts denied to them by groups invoking NAGPRA rights. If you look at the pictures and are glad you saw them, because seeing them helped you understand and appreciate Hawaiian culture; or if you get “chicken skin” because you sense the mana or spiritual power of the objects, then imagine how future generations will be deprived of those understanding and feelings if Hui Malama gets its way. And if you look at the pictures and feel disgusted at the way the display of the pictures is a desecration of the spirits of the ancestors, and you want to smash your computer monitor, then you will understand how Hui Malama members feel when they see bones and funerary artifacts displayed in museums.

Some activists, most notably the Hui Malama organization, might argue that these artifacts contain actual spirits of actual ancestors and therefore it is a desecration to show the objects, or even to show photographs of them. Other activists, notably Sam Ka'ai, Herb Kane, and Rubellite Kawena Johnson, might argue that these artifacts are part of the cultural patrimony which present and future generations of ethnic Hawaiians (and, indeed, all people) need to be able to see and to study in order to understand and be inspired by Hawaiian culture. For example, in an article in the Honolulu Advertiser of March 29, 2000 the well-known ethnic Hawaiian graphic artist and cultural historial Herb Kawainui Kane wrote about Hui Malama’s plea to the NAGPRA committee demanding repatriation of the Providence Museum spear-rest: “In the absence of evidence, an emotional appeal was made, calculated to arouse sympathy from the American Indian majority on the review panel, and included highly inventive metaphysical statements. This is the kind of hogwash by which NAGPRA, a noble effort, has been corrupted. Those responsible will incur the rage of future generations of Hawaiians who have been denied access to the treasures of their past.” Source:
http://the.honoluluadvertiser.com/2000/Mar/29/opinion3.html
Thus, Hui Malama is (ab)using religious beliefs held by a few radicals to demand political power that would affect all ethnic Hawaiians and, indeed, all the people of Hawai'i. This attempt to theocratize and balkanize Hawai'i in some ways resembles what the Ayatollah Komeini did to Iran and what the Taliban did to Afghanistan.
Members of Hui Malama argue that archeologists who dig up bones and funerary objects, remove them, study them in laboratories, and display them in museums, are merely sophisticated grave-robbers. But other activists see a sophisticated form of thievery in the way Hui Malama worked closely with Bishop Museum to remove extraordinarily rare and valuable artifacts hastily and secretly from the protection of the museum without giving competing claimants full due process. Readers of this website, seeing the pictures below, should ponder for themselves whether they feel it is morally wrong to publicly display objects which may be sacred and may contain living spirits, or whether they feel it is proper to publicly display these objects because it would otherwise be difficult to grasp the issues being discussed. Should all such objects as these be re-buried, and all photos of them be destroyed? Would the spirits of the ancestors then rest more easy? Would future generations be deptived of a profound source of knowledge and inspiration of their heritage? And so, in looking at the three pictures below, remember that you are making a choice to get knowledge and understanding for yourself even though others might consider it a desecration for you to be looking at pictures of sacred images of the spirits of the ancestors.

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WARNING -- DO NOT SCROLL DOWN ANY FURTHER IF YOU BELIEVE IT IS MORALLY WRONG TO LOOK AT PHOTOGRAPHS OF CULTURAL ARTIFACTS THAT SOME PEOPLE BELIEVE CONTAIN LIVING SPIRITS OF ANCESTORS.

Below are two pictures of an image of one of two female figures found in the "Forbes Cave." Made of wood with human hair, it was used for many years as a marketing image by Bishop Museum; for example, in a Bishop Museum brochure in 1984. The photo on the left shows that brochure; the photo on the right was published in a Honolulu Advertiser article on August 29, 2004, and shows the same figure in its entirety without Bishop Museum advertising. Photo on the right has URL:
http://the.honoluluadvertiser.com/dailypix/2004/Aug/29/ln09a_b.jpg

A second carved image of a female figure was also found in Forbes Cave, and ended up in the collection of the Hawaii Volcanoes National Park. The photograph of that second image, below, shows that is is very similar to the first figure. An article in the Honolulu Advertiser on Tuesday November 16, 2004 included the following information and description:
http://the.honoluluadvertiser.com/article/2004/Nov/16/ln/ln15p.html

“A burials organization is applying pressure on the National Park Service to transfer five cultural items in the Hawai'i Volcanoes National Park collection to Native Hawaiian ownership. The items were part of the collection the group reburied at Kawaihae Cave four years ago. An official with the park said yesterday that the service intends to "repatriate" items as required by federal native burials law and is preparing a written plan. The burials organization, Hui Malama I Na Kupuna O Hawai'i Nei, is planning to open a dispute proceeding under the Native American Graves Protection and Repatriation Act, in which a committee would review the case, said hui member Edward Halealoha Ayau. Ayau listed the items, all part of the original group that the David Forbes expedition collected from a burial cave more than a century ago [including a] 27-inch tall wooden female figure, decorated with shell inlay eyes and human hair. Its companion piece, a very similar figure, is one of 83 Forbes objects that Hui Malama reburied in the cave four years ago after a very controversial loan arrangement with Bishop Museum. The photograph below has URL:
http://the.honoluluadvertiser.com/dailypix/2004/Nov/16/localnews15_b.jpg

Below is a photograph of a 15-inch carved wooden artifact believed to be a spear rest. It is believed to have been brought to Rhode Island in 1810 by David Tillinghast, possibly a descendant of Roger Williams, founder of the Rhode Island colony. It was given to The Providence Franklin Society, a group of retired shipowners and captains who planned to open a museum of items gathered during ship voyages. They later disbanded, and in 1922 gave the collection to the city. The Hui Malama organization claims this spear rest must have been in the family of a high-ranking chief, and that it contains the deified spirit (aumakua) of a warrior.

Here is a photograph of one of the Forbes Cave artifacts which probably is not believed to contain a living spirit, but was claimed by Hui Malama as being an unassociated funerary object. The object was found along with the other artifacts in Forbes Cave, where bones were also buried. It is unknown whether this object was the property of one of the persons whose bones were there, or whether it is a religious object, or whether it was simply placed in the cave for safekeeping during a period of social upheaval around 1819 or 1820 after King Liholiho Kamehameha II had abolished the old religion and ordered the destruction of heiau and artifacts. Click here:
http://the.honoluluadvertiser.com/dailypix/2003/May/13/ln03a_b.jpg

Finally, here is a photo showing many of the Forbes Cave artifacts gathered together.

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(4) An outstanding summary of NAGPRA, the Forbes Cave controversy, and other controversies, as published in the professional journal "Museum" [American Association of Museums], March/April issue of 2008.

http://www.aam-us.org/pubs/mn/nagpra.cfm

Museum [American Association of Museums], March/April issue of 2008.

Paradise Almost Lost: Hawaii's Bishop Museum Grapples with NAGPRA

Goddesses, human hair, buried treasure and unexpected death in the tale of the Bishop Museum's Forbes Collection

by Christopher Pala

On Feb. 26, 2000, a Saturday when most of the staff of the Bernice P. Bishop Museum in Honolulu was off, the museum’s vice president handed over a crate containing 29 of the museum’s most valuable items, known as the Forbes Collection, to Edward Halealoha Ayau, a well-connected young lawyer. Ayau promptly took the collection to the Big Island of Hawaii and put it back in the cave where it was found in 1905. (The Bishop is located on the island of Oahu.) He walled the entrance and set a booby trap inside.

The action ignited a furious debate and resulted in civil litigation, jail time for Ayau, accusations of theft and the disappearance from public view of some of the state’s most powerful art. The case highlights the strikingly different effects the Native American Graves Protection and Repatriation Act of 1990, known as NAGPRA, has had in Hawaii and in the rest of the United States.

For the American Indian communities for whom it was intended, NAGPRA has largely been a success. The act provides a mechanism for Native American tribes to regain possession of human remains and sacred and funerary objects held by U.S. museums. Thousands of remains have been returned by museums and properly interred by tribes, along with objects that have been placed in museums controlled by tribes.

Given that the nation’s 550-odd Native American tribes are legal and physical entities that have had two centuries of relations with the federal government, the question of to whom the objects should be returned has been generally uncontroversial. Dean Snow, president of the Association for American Archaeology, says funerary objects recovered from museums either have been kept by tribal leaders for ceremonies, put on exhibition or, in some cases, interred. “I’m not aware of any controversy over a tribe burying objects of great beauty or cultural value” in the continental U.S., he said. “Generally, NAGPRA has been a good thing.”

But Hawaii, which was an independent country rooted in a European-style feudal society until American businessmen engineered the overthrow of its monarch in 1893, doesn’t have tribes. So Congress simply defined “Native Hawaiian organizations” that can make claims for these objects as those that have some expertise in Native Hawaiian matters and in some way represent Native Hawaiian interests. It doesn’t even require that a Native Hawaiian organization have Native Hawaiian members.

More than a hundred of these entities have come forward to claim remains and objects under NAGPRA, some worth millions of dollars. Some groups have fought bitterly over the handling of bones and artifacts.

One organization, though, was given an advantage from the start. The legislation, which was largely the work of then-chairman of the Senate Indian Affairs Committee Daniel Inouye (D-Hawaii) named Hui Malama I Na Kupuna O Hawaii Nei (Group Caring for the Ancestors of Hawaii) as one of two Native Hawaiian organizations that could receive objects listed under the act, though others could qualify, too. Hui Malama was founded in 1989, the year before NAGPRA was passed. Its executive director, Edward Ayau, the man who would later return the Forbes Collection to the cave from which it was taken, was on the staff of the Indian Affairs Committee at the time the legislation was drafted.

While the repatriation of human remains caused no more controversy in Hawaii than it did on the mainland—some ceremonies had to be reinvented in both places—Ayau’s position on what constitutes funerary objects in Hawaii has set him apart from mainstream archeologists and many Hawaiians.

The latter groups say that in traditional Hawaiian society, bodies of native Hawaiians were usually buried secretly, with few personal objects. Ayau disagrees, maintaining that the objects found near bodies in the remote caves where they were placed are in fact funerary objects that should be returned to the cave with the remains. It was this interpretation that led to the confrontation.

Hawaiians traditionally believed that the spirit of a person, the “mana,” resides in the bones, particularly the shin and thigh bones. Sometimes the deceased was left to rot, then stripped of flesh. The skull and long bones were kept in the residence, distributed among relatives or placed secretly in a remote cave, wrapped in a plain bundle of bark cloth so foes could not find or identify them. The more powerful the deceased, the more secretive the burial and the site, since obtaining those bones would allow an opponent to insult and overpower the spirit of the deceased. Royalty were often baked in a pit over hot stones. Their flesh was removed and their unmarked bones stored in a remote location.

In addition, Hawaiians, who had no metal, primarily used human bones to make fishhooks and other tools. “The more powerful the man, the more fish they thought you could catch with a hook made from his bone,” says Yosihiko Sunoto, a Bishop Museum archaeologist. Conversely, they embedded teeth or bones from their slain enemies into wooden spittoons to denigrate their spirits. In the Bishop’s collections storage room stand several several tall, feather-topped staffs. One, owned by King Kamehameha I, who united Hawaii, has bone inlays of three chiefs he killed in battle in 1795.

The collection at the center of the controversy was discovered in 1905 in a cave at Kawaihae on Hawaii’s Big Island by three men: David Forbes, a 41-year-old Scottish plantation manager with an interest in Hawaiian art; his German accountant, Frederick Haenisch; and a friend, William Wagener. While many pieces had been hidden in caves only to be later stolen and sold on an emerging international market, this cave had been undisturbed for more than 100 years, Forbes realized. After going through an empty chamber, they entered a second one where they found a “beautifully shaped dugout canoe” covered by a “nicely finished and polished surfboard.” In the canoe rested the desiccated remains of a tall man, apparently a minor chief.

On the way out, the trio spotted a walled entrance to another chamber. They removed the wall of stones, crawled through a narrow passage and, Forbes wrote, “We found ourselves in the last resting place” of about 20 bundles of bones and skulls. The cave gave the trio a “weird feeling, so that but few words passed between us.” In that chamber they found the objects that would later be known as the Forbes Collection.

Among them, wrapped in bark cloth known as tapa, they found two striking female wooden figures with full heads of human hair and mother-of-pearl eyes, about two feet high. There were also two taller wooden sculptures believed to represent the war god Ku, which Forbes called an “awesome god of terror.” There were other objects in the hall, including a unique shark-tooth carving instrument with a handle made of a human clavicle and a konane board game with carved figures for support. Nearby lay what Forbes called “The most beautiful bowl I had ever seen. It was inlaid with human teeth and on each side were carved two images, male and female, that acted as a base.” Another bowl was inlaid with whale-tooth ivory and human bones. There was also a wig of human hair on a wicker support.

The trio left with the objects but no bones. For an appraisal and perhaps a purchase offer, Forbes naturally wrote to William T. Brigham, the director of the Bishop Museum—Hawaii’ s pre-eminent museum, then and now.

The museum was founded in 1889 by a banker named Charles Reed Bishop five years after the death of his wife, Bernice Pauahi, a Hawaiian princess with vast land holdings, to house her collection of heirlooms and those of previous monarchs. It became a refuge for the cultural and religious objects that had been hidden since 1819, when Queen Kaahumanu, the widow of Kamehameha I, decreed that they should be destroyed and that the old, feudal order (which notably prohibited women from eating with men) should be abolished. (The first missionaries, New England Congregationalists, coincidentally showed up the next year.) Some of these objects were duly destroyed by her followers, some were hidden and later given to the Bishop while others were later destroyed by missionaries.

In addition to the world’s largest collection of Hawaiian artifacts, over time the Bishop amassed probably the biggest assemblage of ceremonial feather clothing in the world (brightly colored feather capes were used by royalty), along with the largest collection of Polynesian artifacts. It also became a natural history museum, with the country’s fourth-largest collection of specimens—24 million objects, including 14 million insects and 6 million shells.

Brigham, the museum’s director at the time, unsurprisingly indicated an interest in acquiring what Forbes and his partners had found. The wooden sculptures of women had “a freedom and individuality seldom seen in the images of the gods,” he wrote, estimating they were made in the late 18th or early 19th century. After discovering the value of their find, the trio split the collection into three lots and drew straws. Haenisch got the pair of war gods and the bone-inlaid bowl and promptly donated his share to the Bishop. Wagener got one of the female figures, the wig and the tooth-inlaid bowl with human figures, which he sold to the museum a year later.

Forbes drew the other female figure, the game board and the clavicle instrument, but he kept his share at his home in the Big Island, where he believed they should remain. After he died, his daughter honored his wish and, in the absence of an ethnographic museum on the Big Island, gave them to the visitor center of the National Park Service’s Volcano National Park. They were exhibited there until after the passage of NAGPRA, when Don Severson, a dealer in Hawaiian antiquities in Honolulu, appraised them for the Park Service. When he valued the woman and the board game at least $1 million each—they’re worth about $5 million each today, he says—the center had copies made and locked up the originals. Both copies were removed from view at the start of the controversy.

The other female statue, which was never reunited with its mate, became one of the Bishop’s signature pieces; a picture of it was placed on the cover of a museum brochure. The main objects in the collection were exhibited almost continuously beginning in 1906. In 1981 and 1982, they traveled to eight venues in the United States as part of the exhibition called “Hawaii, the Royal Isles.” When they returned, they were displayed for years in the museum’s Hawaiian Hall, now under renovation.

After NAGPRA passed in 1990, the Bishop dutifully started an inventory of objects to which the act might apply. Donald Duckworth, an entomologist and the museum director at the time, hired Ayau, Ayau’s sister and his girlfriend to work on the NAGPRA issues. This prompted a former Bishop archaeologist, Lloyd Soehren, to write a letter to the editor of a local paper questioning the wisdom of a museum whose mandate is to “collect, preserve and interpret objects of patrimony” in hiring a man whose goal is “just the opposite, to ‘repatriate’ and conceal such objects.” Duckworth, an AAM Board member from 1995–2001, says that enlisting the cooperation of Ayau’s Hui Malama was unavoidable, given the group’s prominence and pedigree.

In 1994, four organizations, including Hui Malama, applied to obtain repatriation of the Forbes Collection, by then appraised at about $20 million. Most said they wanted to conserve or exhibit the objects. At this point, Ayau’s group had been given more than 1,000 human remains—many from the Bishop—and reinterred them without controversy. The group also worked successfully with the Bishop on several other occasions to repatriate objects. Hui Malama says the figure has now climbed to 3,500 remains and objects from some 30 institutions ranging from the Smithsonian Institution to the British Museum.

Ayau argued the Forbes objects also should be put back in the cave because they were funerary in nature. The museum’s scholars disagreed.

Roger Rose, the foremost specialist of the collection and a Bishop staff ethnologist for 29 years, says the cave in which the Forbes objects were found is located a mile or so from a camp and shrine Kamehameha I used as a base to launched his invasions of Maui and Oahu in the late 18th century. “I think the female figures are representations of the goddess Kiha, who was very important to him, perhaps at the head of his pantheon,” Rose says. “The stick gods seem to be representations of Ku, the god of war. He believed that Ku helped him conquer the other islands and Kiha helped him hold them. They and the other objects were probably placed in the cave by his staff after his death,” following his widow’s 1819 decree that all sacred figures be destroyed. The uniqueness and the refinement of the game board and the clavicle instrument, which Rose believes may have been used to remove royal flesh in burial ceremonies, suggest they too were probably in the king’s compound before they were hidden in the cave.

Rose, who is finishing a book on the history of the Forbes collection, says the eight main objects found in the Forbes cave “are among the most beautifully crafted examples of Hawaiian carving.” He adds that the two female figures and the two stick figures of the god of war are among only six pairs of the 160 carved wooden figures from Hawaii to survive in the world today.

Given the importance of the Forbes collection, the Bishop Museum initially balked at handing it over to Ayau. Staff were concerned that its value would make it a magnet for thieves if it was placed in a cave whose location was no secret. It was the first time anyone in Hawaii had proposed to “repatriate” museum pieces to their caves of origin, and it caused much soul-searching in the Native Hawaiian community.

In a telephone interview, Ayau said the man in the canoe had been identified as Chief Mahi, who probably died around 1830. Ayau added that he believes all the objects in the other chamber of the cave were connected with Mahi’s body, which he called “standard burial practice.” He also claimed that the very taking of objects constituted theft by Forbes, and he accused the museum of having knowingly received and bought objects from grave robbers. (In fact, Hawaii had no antiquities law in 1905. The first law forbidding the removal of antiquities from caves was passed in 1906 in Washington, D.C.) Ayau’s lawyer, Moses Haia, added in an interview that even if the objects were not of funerary nature, “If we want to stay true to our ancestors who said we should destroy them, then we should do so.”

At a Feb. 16, 2000, meeting on the issue, Hawaiian elder Henry Auwae warned that the statues may have been used in witchcraft and returning them to the Kawaihae cave where they were found could be harmful. Within minutes, Edward Kanahele, a founder of Hui Malama who had just finished arguing for taking them back there, collapsed and died. “You have to be careful when you mess with that,” Melvin Kalahiki, head of Living Nation, another Native Hawaiian claimant, later commented.

Eight days later, the head of the Hawaiian Homes Commission, a state agency, wrote to Bishop Vice President Elizabeth Tatar, warning her not to give the collection to Hui Malama because the four claimants could not agree what to do with it. But on Feb. 26, Tatar—without Duckworth’s knowledge, he says; he was on the mainland that day—did just that, in violation of multiple museum rules, not least that such an action required the board’s approval. In total, she handed over more than 200 objects. The pieces not in the Forbes collection, returned by Hui Malama to a total of four caves, were mostly bits of tapa, matting, cordage and netting, which Rose describes as “of considerable ethnological interest” but modest monetary value.

The paperwork described the handover as a loan for a year, during which Hui Malama would keep the objects in a secure, above-ground location until the various claimant groups agreed on what should be done with them. Tatar reportedly said Hui Malama had assured her that the other claimants had signed off on the handover (they had not, and opposed it) and claimed she was deceived. She declined to be interviewed for this article.

Once the loan was reported in the news media, Hui Malama announced that the objects were already back in the cave. Although the organization had written in a federal grant report in September 1999 that it was “confident that by February 2000, [the objects] will be repatriated, for reunification with the ancestors’ bones,” the move caused a sensation.

Duckworth was pilloried in the press. One local daily called the handover “nothing short of disastrous,” while the other denounced Hui Malama for “theft by persuasion.” Duckworth apologized, but instead of firing Tatar, he punished employees who had condemned the “loan.” DeSoto Brown, the museum’s chief archivist, was suspended for ten days for disclosing it to the papers, while the public relations manager was fired for speaking out against it at a staff meeting. Twenty-one staffers who signed a protest petition were reprimanded.

A month after the handover, Ayau stopped by to visit Brown at the museum archives and demanded that he stop allowing people to see, and make copies of, pictures of anything found at the caves where the Forbes Collection artifacts were discovered. Brown recalls asking Ayau, “‘And what will we do with the pictures?’ He answered, ‘I would have them burned.’” Despite Duckworth’s backing of the no-showing policy (which he says he doesn’t remember), Brown says he refused to implement it and did not burn any pictures.

Eventually, the museum wrote a letter to the other claimants asserting it had fulfilled its obligations under NAGPRA and had no more responsibility in the matter. “The museum basically said, let the natives fight it out,” said Laakea Sugunumu, president of the Royal Hawaiian Academy of Traditional Arts, which worked hard to get the collection back. He called Hui Malama’s leaders “a bunch of schoolyard bullies” who “formed [the organization] for the express purpose of taking advantage of NAGPRA’s provisions and arbitrarily imposed their beliefs on everyone else while getting paid for their services.”

Duckworth retired in 2005. He was replaced by William Yancey Brown (no relation to DeSoto Brown), who would play a key role in recovering the objects.

Brown was a graduate of Harvard Law School with a PhD in ornithology from the University of Hawaii. He had founded the minuscule U.S. partner agency of the Convention on International Trade in Endangered Species, where, he recalled, he managed to heavily regulate fur exports, to the delight of environmentalists and to the consternation of the fur industry. “We were the mouse that roared,” Brown quips. He went on to serve four years as the science advisor to President Bill Clinton’s Interior Secretary, Bruce Babbitt.

At a wedding in early 2001, he happened to meet Duckworth and expressed interest in his job. According to Brown, after a 90-minute chat with the museum board’s search committee in Honolulu, he was hired. “I think they thought I was a very cooperative guy who would fit in with their plans, and in many ways, I didn’t,” he muses with a smile.

Brown, 59, is slight, affable and soft-spoken. He has a twinkle in his eye and a rich sense of humor and is polite and attentive to a fault. Those who know him well say he is surprisingly strong-willed and effective. “He’s the mouse that not only roars, but bites,” observes James H. Wright, a Honolulu lawyer who has worked with, but not for, Brown.

When Brown got to the Bishop Museum, he found it was in the red, its staff of about 200 demoralized and its reputation in tatters. So he spent the first year and half dealing with deficits and fundraising. When an aide told him that a dispute between Native Hawaiian groups over disposition of some museum artifacts had been satisfactorily resolved, he let the matter lie fallow.
But when Brown finally read up on the case, he thought that what the museum had done was “horrible,” he recalls. “I felt we had an ethical obligation to try to recover the objects and safeguard them for future generations.”

Although most people thought Hui Malama would never give up the collection, Brown talked the board into reversing its earlier decision and voting for recovery. But after Hui Malama refused, even hinting that to re-enter the newly sealed cave would be unsafe, the board would not let Brown sue the group. Twice, the NAGPRA Review Committee told Hui Malama to return the objects, and twice it demurred.

The controversial loan triggered a federal criminal probe by the Department of Interior’s Inspector General’s office. No charges were ever filed against Ayau by the Interior Department.

Enter Princess Abigail Kawananakoa, 81—a childless heiress to the Hawaiian throne, a leader in historic preservation and a racehorse-breeding multimillionaire. She called Hui Malama’s actions “a travesty that should never have happened,” insisted that idols were never used as funerary objects in Hawaii and spent more than $400,000 on a 2005 federal lawsuit against both Hui Malama and the museum for violating NAGPRA rules. According to Wright, her chief lawyer, Hui Malama ensured its defeat by telling a rather conciliatory federal judge that he had no right to interfere in Hawaiian religious matters and then staging a small riot in his courtroom. Ayau refused to say exactly where in the cave the objects had been placed and was jailed on a contempt charge for three weeks. During the suit, it also emerged that Hui Malama had lost all records of how it spent more than $1 million over ten years in federal grants, according to Wright.

After much acrimony, some of it public, the judge ordered the entire collection returned to the Bishop, a decision that was sustained on appeal. In September 2006, a museum team traveled to the cave and used a helicopter to recover the objects. “It took us a week to get them out. They were behind layers of concrete, and one of caves had a lethal booby trap,” Brown recalls. Anyone who entered the cave would fall eight feet and then be hit by falling rocks.

Brown predicts that with the claimants unable to agree, the collection will probably stay in the museum. When it might be exhibited again is anyone’s guess. In the meantime, it is now located in what he describes with satisfaction as “a very, very safe place.”

Betty Kam, the Bishop’s vice president for cultural resources, says 25 Native Hawaiian organizations have now formally laid claim to the Forbes collection. Some want the objects back in the cave, some want them exhibited and some want neither. The museum is in the process of determining which has the most merit, a process that should be complete “within a couple of years,” she says, adding, “What matters to us is the strength of their claim, not what they plan to do with the collection.” While Kam called NAGPRA’s intent “great,” she says the main problem for Hawaiian museums is how to interpret it—and more specifically, “to whom you give the objects back.”

William Yancey Brown left for Philadelphia in January 2007 to become president of the Academy of Natural Sciences. The Bishop Museum’s board, long widely perceived as a social club for the elite dominated by whites and Asians, as a result of Brown’s leadership is now much more engaged in the institution, and it has, for the first time, a Native Hawaiian majority, 15 out of 25. While The Honolulu Advertiser, one of the two local dailies, editorialized when Brown arrived that he had “very small shoes to fill,” when he left, it quoted the head of the museum search committee as saying they were looking for “someone exactly like William Brown.” It remains to be seen whether his successor, Timothy E. Johns, a respected former chairman of the state department of land and natural resources, will be able to safeguard and eventually exhibit the Forbes collection or resolve disputes among claimants as required under NAGPRA. He declined to be interviewed.

Meanwhile, another set of objects returned to Hui Malama under NAGPRA in November 2003 caused more controversy. The case involves 157 items from the collection of J. S. Emerson, the most extensive one of Hawaiian pre-contact, everyday objects. After the Peabody Essex Museum in Salem, Mass., and the Bishop Museum returned the Emerson items to Hui Malama, the group placed them back in the Kanupa cave in the Big Island, where they originally were found. In June 2004, the collection, with some objects still with Bishop Museum tags, was spotted for sale at Captain Cook’s Tiki Hut, an antique store on the Big Island operated by Daniel Taylor, 39, one of the island’s most active dealer in high-end antiquities. The collection, which included a hook-shaped ornament hanging on a necklace of braided human hair that Taylor priced at $40,000, was offered to a local coffee grower who alerted the interior department’s law-enforcement officials.

According to Wright, who assisted these officials in the case, it took two months for them to get the local police to seize the collection as it was being sold piecemeal—some pieces were offered on the Internet—and arrest Taylor. After he was briefly held and released with no charges in August 2004, according to court records, other federal and state officials tried to ensure he did not reveal his meticulous records showing to whom he had sold other stolen, rare and expensive artifacts, Wright says.

“Many of the pillars of the community had a lot to worry about,” he adds. Taylor was not charged until March 2006—with a single misdemeanor charge to which he pled guilty—and it wasn’t until June 2007 that he was sentenced to 11 months in jail. In October, because of an undisclosed neurological condition, he began serving his sentence in a federal medical facility on the mainland, according to court records. John Carta, a charter boat skipper who helped Taylor find the cave and remove the objects, was sentenced to a year but died of a heart attack before going to jail. He was 46.

NAGPRA Old and New

On Nov. 16, 1990, Congress signed into law the Native American Graves Protection and Repatriation Act (NAGPRA), landmark legislation that permanently altered the relationship between museums and Native Americans. Earlier laws, such as the 1906 Antiquities Act and the 1979 Archaeological Resources Protection Act amendments, had viewed Native remains and funerary objects found on public or Indian lands as archaeological objects to be managed for the purpose of scholarly study. NAGPRA, along with the 1989 National Museum of the American Indian (NMAI) Act, acknowledged for the first time that American Indians and Native Hawaiians had a right to their ancestors’ remains and the objects that were buried with them.

The 1990 act required museums and federal agencies to work with federally recognized tribes and Native Hawaiian organizations to determine the disposition of Native human remains and sacred and funerary objects taken from federal lands or located in museum collections. It established a mechanism for the return of remains and property to the descendants or culturally affiliated tribe of the deceased. It mandated that organizations prepare collection summaries and inventories to aid tribes in their research. And it created a review committee, comprised of seven representatives from the museum, academic and tribal communities, to monitor and review the implementation of the law.

Over the past 18 years, museums and Native groups have worked in partnerships to fulfill the law’s requirements. On the whole, the process has been beneficial, building productive relationships between museums and tribal groups. There are many instances in which human remains, sacred objects and objects of cultural patrimony have been repatriated. In other cases, native groups have asked museums to continue to serve as stewards of this material, working with tribal representatives to provide appropriate care. But with an estimated 200,000 remains in museum and federal collections there have been some instances in which the process has not been smooth. Disagreements have, on occasion, resulted in litigation, particularly over culturally unidentifiable human remains, which were not covered in the initial rules implementing the law.

Recently the National Park Service’s National NAGPRA Program began drafting a rule regarding implementation of NAGPRA with regard to culturally unidentifiable remains and associated funerary objects. In January, after consulting with the field and considering diverse viewpoints, including those of tribally governed museums and museums primarily dedicated to scientific research, AAM filed public comments expressing serious concerns about the proposed rule.

Two of the most problematic aspects of the proposed rule are the introduction of a new and undefined term—“cultural relationships”—and the expansion of the mandate for consultation to include non-federally recognized tribes. Various provisions of the rule would make it impossible for a museum to ever gain right of possession for unidentifiable remains and establish civil penalties should the museum fail to repatriate such material to some group. Many in the museum community fear that this could create a situation similar to that which contributed to the events described in the accompanying article. The underlying intent of NAGPRA is to ensure the return of human remains, sacred objects and objects of cultural patrimony to the right group or consortium of groups through a thoughtful, collaborative process. Ambiguity regarding who may present themselves as legitimate claimants and pressure for rapid resolution of competing claims can lead to exceedingly unfortunate results.

AAM is committed to expeditiously resolving the issues surrounding unidentifiable human remains and associated funerary objects but wants any new process to retain the respect and collaboration that are at NAGPRA’s core. For more information about NAGPRA, visit www.nps.gov/ history/nagpra.

Christopher Pala, a former foreign correspondent, has been reporting from Hawaii for the New York Times and other publications since 2006. He is the author of The Oddest Place on Earth: Rediscovering the North Pole.